Decision Date: 11/28/95 Archive Date:
11/28/95
DOCKET NO. 93-15 676 ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in
Louisville, Kentucky
THE ISSUE
Whether a previously disallowed claim for service connection
for disabilities resulting from multiple injuries sustained
in a motorcycle accident in service has been reopened by
submission of new and material evidence.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
R. L. Shaw, Counsel
INTRODUCTION
The veteran had active military service from September 1982
to March 1985.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 1993 determination by the
Louisville, Kentucky, Regional Office (RO) of the Department
of Veterans Affairs (VA) that new and material evidence
sufficient to reopen a claim for service connection for
multiple injuries sustained in a motorcycle accident during
active service had not been received. The veteran testified
at a hearing before a traveling member of the Board at the
RO on September 13, 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has submitted new and material
evidence which should be found adequate to reopen a claim
for service connection for injuries previously found by an
August 1985 VA administrative decision not to have been
incurred in line of duty. The veteran argues that, despite
contrary a finding by military authorities, he was not
absent without leave (AWOL) at the time of his accident but
that, in any case, his absence was so brief as not to have
interfered with his performance of military duty.
In support of this argument, he cites a VA regulation, VAR
1066(a), which was in effect before 1963. Noting that the
pertinent provision was deleted when the regulation was
updated in 1963, he argues that it thereupon became
"archival." He maintains that the circumstances of his
particular accident fit this archival regulatory provision
inasmuch as his absence was brief, there was no specific
duty assignment which he was avoiding, and there was no
adequate finding of intoxication. The purpose of the
regulation, he maintains, was to grant leniency in
situations such as his. Asserting that the pertinent
language was included in a revision of the regulations which
became effective on May 29, 1959, incident to the enactment
of Public Law 85-857, he argues that VAR 1066(a) is still in
effect based on the intent of Public Law 85-857, which was a
comprehensive restatement of existing VA laws.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran's claim for service
connection for multiple injuries sustained in a motorcycle
accident in service has not been reopened by submission of
new and material evidence.
FINDINGS OF FACT
1. On October 23, 1983, during active military service, the
veteran sustained multiple injuries in an automobile
accident which resulted in residual disabilities.
2. On August 8, 1985, an administrative decision by the RO
held that the injuries received on October 23, 1983, were
not incurred in the line of duty.
3. The veteran did not appeal this adverse determination
within one year after receiving notice thereof in a letter
dated August 12, 1985.
4. Material received since the administrative decision of
August 8, 1985, is cumulative and does not raise a
reasonable possibility of changing the outcome.
CONCLUSION OF LAW
The claim for service connection for multiple disabilities
resulting from injuries sustained in a motorcycle accident
in service is not reopened inasmuch as no new and material
evidence has been received. 38 U.S.C.A. §§ 5107, 5108, 7104
(West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.302(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background.
The record shows that the veteran was involved in a
motorcycle accident on October 23, 1983, near an entrance
gate to Fort Drum, New York, where he was stationed.
According to the sheriff's accident report, the mishap
occurred at 12:04 A.M. The veteran was taken to a private
hospital and subsequently to a military hospital for
treatment of numerous injuries, including several bone
fractures, multiple contusions and abrasions, a right elbow
laceration, and traumatic amputation of the right leg.
An Army line of duty investigation was conducted. The
veteran declined to be interviewed. A number of statements
were taken from other persons. Acting Corporal L. T.
Clemmons related that at 2200 hours on October 22, 1983, the
veteran asked if he could ride his motorcycle and was given
permission to do so as long as he stayed "in the Fire
Station area, and we could contact him in case of a fire,"
terms to which the veteran agreed. Corporal Clemmons
related that about every 15 minutes the veteran would come
in to warm up because it was cold outside. J. L. Thomas
related that at about 1930 hours, SP/4 Whittington had left
his motorcycle at the Fire Station and that the veteran had
ridden it several times up and down the highway, coming in
and out of the station to warm himself up. R. L. Tubbs
related that at about 2200 hours he had ridden with the
veteran for a few minutes and that at about 2230 hours the
veteran had left. J. R. Goderre related that on the night
of October 22nd, while at a party, he noted that the veteran
was there in his duty uniform and indicated that he was on
duty. PFC Goderre related that he had seen SP/4
Whittington's motorcycle and that the veteran had been
drinking at the party. He stated that he saw the veteran at
around 2300 hours and that the veteran left the party at
about 2430 hours. J. R. Blom related that she had seen the
veteran at the "Jones party" at about 6:30 P.M. She related
that upon returning to the party later the veteran was no
longer there. She indicated that she remained at the party
until about 11:30 P.M. and that when she left the veteran
was not there.
The investigating officer found that the veteran was AWOL
because he had voluntarily left his place of duty without
proper authority and had gone to an off post social
function. The injuries were found to have been sustained
"not in line of duty - nor due to own misconduct." The
veteran appealed the finding, and in connection with the
appeal submitted a prepared statement which contained the
following language:
The entire basis used to justify the investigating officer's
finding is her conclusion was that I was AWOL at the time of
the accident. This is an [absurd] conclusion and is not
supported by the facts. On the day of the accident I was on
duty at the fire station. All of us assigned at the fire
station were new and had been there approximately one month.
CPL Lynn T. Clemmons was the crew chief on duty at the fire
station. In that position, CPL Clemmons was the highest
ranking enlisted man there; he was in charge. I asked CPL
Clemmons if I could ride the motorcycle. He granted me
permission and told me to ride in the local area so that I
could be contacted in case of fire. To facilitate the
contact, I rode back to the station every 10-15 minutes.
This agreement was with his full approval. At no time was I
more than 3 to 5 minutes ride from the station.
...At the fire station, those personnel on duty were often
permitted to leave the fire station for a brief 20-25
minutes) periods of time. Earlier on the day of the
accident, I had taken PFC John Thomas to the Commissary
...again this temporary absence was with authority. When I
rode the motorcycle, I was again leaving the area with
authority. I was not AWOL and nothing in the file suggests
a different conclusion. I was following a commonly accepted
practice of the fire station. Immediately before the
accident, I rode to a location very near the fire station.
I was there for approximately 10 to 15 minutes and then
headed back to the fire station. On my return trip I had
the accident.
Following examination by a Medical Board, a Physical
Evaluation Board (PEB) found that the veteran was unfit for
further service because of disabilities ratable in
combination as 70 percent under VA criteria and the veteran
was separated from active service. A claim for VA
compensation for the veteran's injuries was received in
March 1985. By an administrative decision of August 8,
1985, it was held that such injuries were not incurred in
the line of duty. The veteran did not appeal this ruling,
of which he was notified by a letter dated August 12, 1985.
In September 1992, the veteran's representative submitted a
memorandum containing factual and legal argument disputing
the August 8, 1985, administrative decision and requesting
that it be reversed. The memo disputed the finding that the
veteran had been AWOL at the time of the accident and argued
that the area covered by the veteran on his motorcycle rides
and the length of his absences were within the scope of the
authority granted to him.
A memorandum dated in January 1993 containing additional
argument was subsequently received. Other documents in
support of the veteran's position were attached. A
photocopy of a volume of legislative history of certain VA
benefits which stated the VA position toward proposed
legislation, H. R. 9700, was included. Copies of VA
transmittal sheets 119, 189, and 280 were submitted. Also
received was a copy of a Board opinion dated February 13,
1990, wherein the Board found that an absence without leave
by a particular claimant had not materially interfered with
his military duties.
The veteran testified at a hearing on September 13, 1993,
before a member of the Board. He related that he was
assigned to the Fire Station as a fireman trainee and had no
specific duties other than to observe fires, which he had in
fact done earlier on the day of the accident, when he
attended a brush fire. He gave an additional description of
the locations of the accident (about 2 miles from the
station) and of the social function (about 2 1/2 miles from
the station). He related that his duties included cleaning
the Fire Station, maintaining equipment, drilling, and
attending training classes but that the fires were normally
put out by civilians. He described a very relaxed
atmosphere at the station with respect to brief absences
when there was no fire.
II. Analysis.
The Board finds that the veteran's claim for service
connection for injuries sustained in the motorcycle accident
in service is well grounded within the meaning of 38
U.S.C.A. § 5107(a) (West 1991) in that it is "a plausible
claim, one which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). The Board further finds that the statutory duty to
assist in the development of the evidence to support a well-
grounded claim has been satisfied. Such assistance has
included procurement of all available service department
medical and investigative records concerning the incident as
well as the scheduling of a hearing on appeal.
The law provides that service connection may be granted for
disability which was incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110 (wartime), 1131
(peacetime) (West 1991). The term "service connected"
includes a requirement that the disability or death have
been incurred in the line of duty in active military, air or
naval service. 38 U.S.C.A. § 101(16) (West 1991). A
disability will not be found to have been incurred in line
of duty if it is the result of the veteran's own willful
misconduct. 38 U.S.C.A. § 105(a) (West 1991). In addition,
VA regulations specify that the requirements as to line of
duty are not met if, at the time of the injury, the veteran
was avoiding duty by desertion or was absent without leave
which materially interfered with the performance of military
duty. 38 C.F.R. § 3.1(1) (1994).
The veteran's original claim for service connection was
denied by an August 1985 administrative decision which
adopted the military investigator's finding that he had been
AWOL at the time of the accident. That determination is
final with respect to the evidence then of record, 38
U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1994), but
the law permits the reopening of a finally adjudicated claim
if new and material evidence is received. 38 U.S.C.A. §
5108 ((West 1991); 38 C.F.R. § 3.156(a) (1994). The Court
has held that evidence is "new and material" when it is not
cumulative of evidence previously considered, when it is
relevant to and probative of the issue at hand, and when,
viewed in the context of all of the evidence of record, it
raises a reasonable possibility that the outcome of the
claim would be changed. Colvin v. Derwinski, 1 Vet.App. 171
(1991); Smith v. Derwinski, 1 Vet.App. 178 (1991). If the
claim is found not to be reopened, no further adjudication
may take place. Manio v. Derwinski, 1 Vet.App. 140 (1991).
New documents added to the record include the transcript of
a hearing on appeal before this Board in October 1993.
However, the testimony by the veteran at that time merely
restates allegations and duplicates known information
contained in the record at the time of the service
department investigation. Some additional details may have
been added, but the testimony as a whole is repetitious and
cumulative of points argued in the above-quoted document
prepared in service to refute the investigation findings
(i.e., that leaving the fire station for brief or even
fairly extended periods was a common practice, that he
remained sufficiently close by to have returned quickly in
case of a fire, that he returned to the station frequently,
and that his peregrinations did not exceed the scope of his
permission.). The testimony does not contain additional
information which would be likely to change the outcome of
the claim if a full de novo review of the merits of the
claim were performed.
Also received were various documents submitted to support
the principal legal argument advanced by the veteran,
namely, that the case should be controlled by the provisions
of a VA regulation, VAR 1066(a), which was in effect for a
number of years but was omitted from the Code of Federal
Regulations in 1959, at which time it was replaced by 38
C.F.R. § 3.1(m) as part of a comprehensive repromulgation of
regulations incident to enactment of Public Law 85-857. VAR
1066(a) differed from its successor regulation in that it
contained the following language:
Generally, it is to be concluded that material interference
does not result from brief absence for a period during which
no specific duty assignment was made or would have been made
if the person had not been absent without leave, unless a
specific duty assignment was avoided by absence without
leave.
The 1985 administrative decision contained an implicit but
unarticulated finding that the veteran's AWOL status at the
time of the accident materially interfered with his
performance of military duty. While the regulatory standard
in effect before 1959 was clearly more liberal, the question
of whether the circumstances of the veteran's individual
case would warrant a different conclusion if considered in
light thereof would require a de novo review of the claim on
its merits. Such review may take place only after the claim
is reopened. The documents submitted in support of the
arguments regarding VAR 1066(a) do not provide any
additional factual information pertaining to the veteran's
conduct during service. To that extent, they do not
constitute evidence and must instead be regarded as
supporting points and authorities for legal argument.
Furthermore, since VAR 1066(a) is no longer in effect, the
Board cannot ignore that, even if the claim were reopened
and the issue of material interference were reviewed de
novo, there would be an obvious impediment to applying it.
The veteran maintains that, having been discontinued, VAR
1066(a) is now "archival." While the concept of an
"archival" regulation is new to this Board, the word
"archival" has clearly been offered as an alternative to
adjectives which suggest permanent expulsion from the law
books, such as "repealed," "rescinded," "revoked" or
"nullified." In the veteran's view, apparently, a provision
that has become "archival" has some form of emeritus status
and retains the force of law. As novel as the argument may
be, it is also specious. Regardless of which word is used,
the regulation no longer exists. Therefore, unless
repromulgated by proper authority, VAR 1066(a) cannot be
resurrected by this Board, regardless of whether the claim
is reopened.
The Board finds that the criteria specified by the Court of
Veterans Appeals have not been satisfied and that the claim
is therefore not reopened. The veteran is advised that,
notwithstanding this determination, he remains free to
reopen the claim at any time in the future by submitting
evidence which merits recognition as new and material
evidence under the applicable standard.
ORDER
The claim for service connection for multiple disabilities
resulting from injury sustained in a motorcycle accident on
October 23, 1983, is not reopened.
STEPHEN L.WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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